How does the process of dismissal by court decision work?

Author of the article: Lina Smirnova Last modified: January 2021 14600

The Labor Code of the Russian Federation contains grounds on which an employer can terminate an employment relationship with an employee. The list of such reasons is defined in Article 81 of the Labor Code. However, for some violations, the employer has the right to dismiss the employee only by court decision, since they require criminal punishment. In this article, we will look at what violations are eligible for dismissal by court decision, what are the features of such dismissal, and what is the procedure itself.

Termination procedure

A manager who has identified an employee’s unlawful act does not have legal grounds to dismiss the employee. Actions of employees in the form of theft, intentional damage to property, including actions against third parties, must be confirmed by official bodies. The basis for issuing a dismissal order is a court decision. When terminating the contract, the following features are taken into account:

• Dismissal is not made during the consideration of the case materials. Based on the results of the investigation, decisions may be made that allow the employee to continue working - imposing a fine, performing compulsory labor, or depriving him of his rank.
• The date of dismissal is the day when the court decision receives legal force.
• The decision is recognized as legally significant after the period for appeal has expired (Article 390 of the Code of Criminal Procedure of the Russian Federation). Within ten days, it is possible to file an appeal or cassation to challenge the decision of the court of first instance.

The basis for dismissal is only a court decision, as a result of which the person will not be able to continue working. Dismissal occurs when a person is sentenced to imprisonment or with the right to engage in a certain type of activity. An employer does not have the right to dismiss an employee if another punishment is imposed.

A.V. Sutyagin, V.A. Ershov, I.A. Tolmachev (Directory of a practicing lawyer on labor law).

Challenging dismissal by court decision

An employee whose rights are violated by the employer during the implementation of the dismissal procedure by a court decision can appeal the actions in court. Features observed:

• A person must comply with the established deadline when applying to court. The claim is filed within a month after receiving a copy of the order or a copy of the work book (Article 392 of the Labor Code of the Russian Federation).
• Decisions regarding reinstatement take effect immediately. If the deadline is missed, the employee has the right to apply to the judicial authority again to receive the amount of average earnings for the period of inactivity.
• The contract with the person employed in the place of the dismissed employee is terminated.

Legal costs are paid by the employer. A person may additionally file a claim for compensation for moral damages.

An example of incorrect deadlines

Employee M. stopped going to work on March 10 due to unclear circumstances. Criminal proceedings were opened against M., and therefore he was placed in a pre-trial detention center. On August 20, M. was sentenced in accordance with Art. 49 of the Criminal Code of the Russian Federation. Despite the verdict, which did not cancel the possibility of work, the manager decided to terminate the contract under clause 4 of Art. 83 Labor Code of the Russian Federation. The employer's actions were appealed by the employee with reinstatement at work and payment of downtime compensation in connection with challenging the grounds for dismissal.

Dismissal during the probationary period

D. went to court based on the results of an unsuccessful test for the candidate - dismissal under Part 1 of Art. 71 Labor Code of the Russian Federation.

The citizen got a job at the joint-stock company with a probationary period of three months, during which he violated the employer’s instructions. As a result, one of the workers was injured at the very end of the test. The result is unsatisfactory results and termination of the TD.

The man, disagreeing with the opinion of the joint-stock company, went to court. D. considered that he did not violate the job description; in addition, the dismissal procedure was violated - the order was handed to him 2 days before the dismissal. The courts of the first and second instances agreed with the plaintiff, reinstating him at work. It would seem that everything is fine? No, the Supreme Court put an end to this issue.

The Supreme Court judges noted that

During the probationary period, the employee can be dismissed at any time

and the standard procedure for terminating a TD is not required. D., when concluding an employment contract, agreed that his probation would last until June 8. Consequently, the notice of termination that he received shortly, on the 6th, did not violate the man’s rights. Taking into account, of course, the violations he committed, which were established both in the first and second instance. This means that the termination was carried out in strict accordance with the letter of the law.

Step-by-step actions of the employer

After receiving a copy of the court decision and determining the need to terminate the contract, the enterprise must take a number of final steps.

An employee of an enterprise has the right to receive from the employer certified copies of documents related to work at the enterprise. Documents are issued within 3 days upon a person’s written request (Article 62 of the Labor Code of the Russian Federation). The list of available information includes information about length of service, salary, calculated and paid insurance premiums, copies of orders for the period of work.

Reinstatement at work

If an employee does not agree with the decision made and considers it unreasonable, he has the right to protest his dismissal by filing a claim with the judicial authorities. This can be done no later than one month from the day on which a copy of the dismissal order was received.

If during the trial the employee was able to prove his innocence and the unfoundedness of his suspension from work, after receiving a court decision he must be reinstated in his previous job.

If the court decides that a person is innocent, the enterprise administration must issue a new order, according to which the employee is re-enlisted in his previous position. Execution of a court decision must be immediate, without waiting for it to enter into legal force. At the same time, the book reflects the date not of the court decision, but of the issuance of the order for reinstatement to the previous job.

If an employer for some reason delays hiring an employee, the latter has the right to appeal this in the courts. In this case, the judge makes a decision that the employee be paid the average salary for the entire period of delay.

An employer can sign a settlement agreement with an employee. In this case, you won’t have to wait for a court decision; you can immediately hire the person. However, the settlement must be confirmed by a court order.

If another person has already been hired in place of the dismissed employee, the management of the enterprise has the right to dismiss him for reasons that do not depend on the will of both parties.

Issuing an order and filling out a work book

The order is issued in the standard T-8 form indicating the grounds for termination of the contract. If at the time of issuance of the order the person is placed in custody and does not have the opportunity to familiarize himself with the order, a corresponding entry is made in the document. The order is recorded in the personnel records log. The accounting and numbering of orders relating to personnel are recorded and stored separately from other orders for a long period.

An entry is made in the person’s work book: “The employment contract was terminated due to the conviction to punishment on the basis of the entry into force of a court verdict, clause 4 of Art. 83 Labor Code of the Russian Federation." Storage of the document at the enterprise is not provided; the person must take measures to obtain it. The work book is sent to the address where the sentence is served or issued to a person authorized by power of attorney.

Order to cancel the dismissal order

Recording in labor

HR department employees who have received a copy of the dismissal order from management must fill out the person’s work book in accordance with the specified requirements, indicating the grounds for dismissal, as well as the order number.

Further, the same information is entered into the person’s personal file, which is stored in the company’s archives. A copy of the work book is also attached here. Registration actions are necessary so that in the future, at the request of the person, there is an opportunity to be reinstated from a previously removed position.

Dismissal by court decision due to recognition as absent

In rare cases, courts are used by employers to dismiss a person recognized as absent. Relatives mostly initiate legal action. The employer goes to court if the following conditions arise:

1. An employee has disappeared and does not appear at the enterprise to perform duties.
2. Using known contacts, it is impossible to contact the person and obtain an explanation of the fact and reasons for the absence.
3. The person has no relatives and has changed his place of residence.

Dismissal of an employee due to absenteeism without receiving an explanation from him is not allowed. The employer is obliged to send a letter about the need to provide explanations for the fact of absence and expect attendance. In case of long-term absence after 5 years, the employer can declare the employee missing in court proceedings. If the disappearance of an employee is associated with fatal circumstances, recognition as missing can be initiated after six months. After receiving the court decision and its entry into force, the employer can dismiss the disappeared employee.

Dismissal for reasons independent of intentions

The employee may be sentenced in a criminal case with its simultaneous entry into force. A convicted employee is considered dismissed on the day preceding his arrest; the order is issued immediately after receiving a copy of the sentence or a court certificate. If the employee is only subject to pre-trial detention, the company does not have the right to terminate the contract. The deadlines for implementing the dismissal procedure are defined in Art. 34 Penal Code of the Russian Federation.

If the entry into force of the judgment is delayed

The issuance of a court decision may take more than one month. Here difficulties may arise in properly dismissing a person.

During the investigative actions, when the proceedings are ongoing and the defendant is in custody, the employer does not have the right to dismiss such an employee. For the entire period of his stay in the pre-trial detention center until the sentence comes into force, wages and work experience for these days are not calculated on the basis of Article 129 of the Labor Code of the Russian Federation.

The only possibility to dismiss an employee before a court decision is made is the presence of the grounds listed in paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation.

These include:

• 
  theft

  Read also: 
• embezzlement
• intentional destruction or damage to property

All these actions must be proven and carried out at the place where the employee performs his professional functions.

Article 81 of the Labor Code of the Russian Federation additionally specifies one more reason for dismissal before receiving a sentence. It is associated with a loss of trust due to doubts arising in the employee’s performance of his job duties.

For example, if a citizen works with securities or cash, and a criminal case has been initiated against him under Article 159 of the Criminal Code of the Russian Federation “Fraud,” he may be fired due to loss of trust.

To dismiss on this basis while the entry into force of the sentence is delayed, it is necessary to obtain confirmation from law enforcement agencies. Usually this is the confession of the accused in the case and the conclusion of experts from the Ministry of Internal Affairs, confirming the person’s involvement in the commission of the crime.

Video on how to challenge illegal dismissal:

Mistakes made when terminating a contract

When dismissing employees by court decision, the main mistakes are related to insufficient compliance with the deadlines for termination of the contract.

Question No. 1. In what situations is a contract terminated by a court decision based on an employee’s claim?

The main reasons for going to court are violations of labor laws by employers, for example, when refusing to satisfy an application for termination of a contract at the initiative of an employee.

Is it possible to challenge a court decision?

If a company employee does not agree with the dismissal because he considers it unreasonable, then it can be appealed. To do this, a statement of claim is filed, but it must be submitted within one month after receiving a copy of the order from the head of the company.

If during the proceedings a citizen provides evidence of his innocence, then he confirms the groundlessness of the dismissal. Therefore, if the claim is satisfied, the court decision is transferred to the director of the company. Such actions lead to the specialist’s reinstatement at the place of employment.

The director, based on a new court decision, issues an order to enroll the citizen in his previous position. The decision must be executed immediately, and the work book reflects the date the order was issued. If another person has already been hired for this position, then he can be dismissed due to circumstances beyond the control of the participants.

Important! If management delays the enrollment of a specialist, then these actions can be easily appealed in court, so for each day of delay the citizen receives an average amount of earnings.